B-132272, OCTOBER 24, 1957, 37 COMP. GEN. 282

B-132272, OCTOBER 24, 1957, 37 COMP. GEN. 282

MILITARY PERSONNEL - AVIATION DUTY - HOSPITALIZATION - SUSPENSION OF FLIGHT STATUS A FLIGHT OFFICER WHO, AFTER TRANSFER TO A NAVAL HOSPITAL FOR TREATMENT OF AN ILLNESS DETERMINED TO BE "PHYSICALLY INCAPACITATING TO SUCH AN EXTENT AS TO DISQUALIFY HIM FOR ACTUAL CONTROL OF AIRCRAFT," PERFORMED SUFFICIENT FLIGHTS DURING THE INTERVALS BETWEEN TREATMENTS TO QUALIFY FOR AVIATION PAY MAY NOT HAVE THE HOSPITAL ADMISSION REGARDED AS AN AUTOMATIC SUSPENSION OF FLIGHT ORDERS IN THE ABSENCE OF A SUSPENSION OF THE MEMBER'S FLIGHT STATUS BY THE COMMANDING OFFICER PURSUANT TO THE REGULATIONS IN PARAGRAPH 1044087-1, NAVY COMPTROLLER MANUAL PROMULGATED PURSUANT TO EXECUTIVE ORDER NO. 10152, AND, THEREFORE, THE OFFICER IS ENTITLED TO AVIATION PAY DURING THE PERIOD THE FLIGHT REQUIREMENTS WERE MET.

TO THE SECRETARY OF THE NAVY, OCTOBER 24, 1957:

REFERENCE IS MADE TO A LETTER OF JULY 29, 1957, FROM THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY, FORWARDING, BY YOUR DIRECTION, A REQUEST FROM THE DISBURSING OFFICER, NAVAL AIR TECHNICAL TRAINING CENTER, JACKSONVILLE, FLORIDA, FOR AN "ADVANCE DECISION" ON THE ENTITLEMENT OF LIEUTENANT COMMANDER FONVILLE KELLY, USN, TO AVIATION PAY DURING A PERIOD OF HOSPITALIZATION. WHILE IT APPEARS THAT SUCH REQUEST INVOLVES PAYMENTS ALREADY MADE RATHER THAN PROPOSED PAYMENTS, IT IS UNDERSTOOD THAT COLLECTION ACTION HAS BEEN INITIATED, THAT THE AUTHOR FOR SUCH ACTION HAS BEEN QUESTIONED, AND THAT AN INTERPRETATION OF THE LAW AND REGULATIONS IN RELATION TO COMMANDER KELLY'S CASE IS DESIRED. IN THE CIRCUMSTANCES AND IN THE INTEREST OF EXPEDITING FINAL ACTION, WE HAVE REVIEWED THE FACTS IN THE RECORD BEFORE US AND HAVE REACHED A DECISION ON THE QUESTION INVOLVED.

IT APPEARS THAT ON APRIL 10, 1956, COMMANDER KELLY WAS ADMITTED TO THE DISPENSARY, NAVAL AUXILIARY AIR STATION, MONTEREY, CALIFORNIA, WITH AN ILLNESS WHICH THE MEDICAL STAFF DIAGNOSED AS " BELLS PALSY, RIGHT, WITH INABILITY TO CLOSE RIGHT EYE.' ON THE BASIS OF THE MEDICAL STAFF'S FINDING THAT COMMANDER KELLY'S ILLNESS WAS "PHYSICALLY INCAPACITATING TO SUCH AN EXTENT AS TO DISQUALIFY HIM FOR THE ACTUAL CONTROL OF AIRCRAFT," HIS COMMANDING OFFICER TRANSFERRED HIM BY MEANS OF ORDERS DATED APRIL 11, 1956, TO THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, FOR TREATMENT. COMMANDER KELLY REPORTED AS A PATIENT TO SUCH HOSPITAL ON APRIL 11, 1956.

THE RECORD DOES NOT SHOW THAT ANY SUSPENSION FROM FLYING DUTY WAS EVER PROMULGATED EITHER AT THE TIME OF COMMANDER KELLY'S TRANSFER TO THE NAVAL HOSPITAL OR AT ANY SUBSEQUENT TIME. THE QUESTION AS TO ENTITLEMENT TO FLYING PAY ARISES, SINCE COMMANDER KELLY, IN THE ABSENCE OF AN ORDER SUSPENDING HIS FLYING STATUS, PERFORMED HIS REQUIRED FLIGHTS WHILE IN THE STATUS OF A HOSPITALIZED PATIENT FROM APRIL 11, 1956 TO AUGUST 29, 1956. AN ABSTRACT OF THE LIGHT HOURS TAKEN FROM COMMANDER KELLY'S LOG SHOWS THAT HE PERFORMED THE FOLLOWING AMOUNT OF FLIGHT TIME DURING HIS PERIOD OF HOSPITALIZATION.

HOURS

APRIL 1956 ----------------------------------------- 4.0

MAY 1956 ------------------------------------------- 4.1

JUNE 1956 ------------------------------------------ 3.6

JULY 1956 ------------------------------------------ 5.6

AUGUST 1956 ---------------------------------------- 3.4

COMMANDER KELLY STATES THAT AFTER THE FIRST WEEKEND OF HIS TREATMENT AT THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, HE RETURNED TO THE NAVAL AIR FACILITY AT MONTEREY, CALIFORNIA, APPARENTLY TO CHECK ON HIS FLYING STATUS. HE FURTHER STATES THAT HE WAS INFORMED THAT THERE WAS NO RECORD OF HIS HAVING BEEN TAKEN OFF HIS FLIGHT STATUS OR GROUNDED, AND HE THEREFORE CONTINUED HIS FLIGHTS IN APRIL, MAY, JUNE, JULY, AND AUGUST 1956 IN ORDER TO MAINTAIN HIS FLIGHT PROFICIENCY. THE ADMINISTRATIVE RECORD IN THIS CASE DOES NOT DISCLOSE THE ISSUANCE OF ANY FORMAL ORDERS SUSPENDING COMMANDER KELLY'S FLYING STATUS DURING THE PERIOD OF HIS HOSPITALIZATION. THE COMPTROLLER OF THE NAVY, HOWEVER, BY LETTER OF MARCH 25, 1957, TO THE U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, CONSIDERED COMMANDER KELLY TO HAVE BEEN SUSPENDED FROM DUTY INVOLVING FLYING BY THE SUPERINTENDENT, U.S. NAVAL POSTGRADUATE SCHOOL, MONTEREY, ON APRIL 11, 1956, AND THAT SUCH SUSPENSION CONTINUED IN EFFECT THROUGH AUGUST 29, 1956. THIS DETERMINATION APPEARS TO HAVE BEEN BASED ON THE NATURE OF COMMANDER KELLY'S ILLNESS AND HIS HOSPITALIZATION FOR SUCH ILLNESS. IT IS UNDERSTOOD THAT ACTION HAS BEEN TAKEN TO EFFECT COLLECTION OF THE AVIATION PAY FOR THE PERIOD HERE INVOLVED.

EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, ISSUED UNDER AUTHORITY CONTAINED IN SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235, CONTAINS REGULATIONS GOVERNING ENTITLEMENT TO FLYING PAY. UNDER PARAGRAPH 4 OF THAT ORDER ONLY MEMBERS "WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS" CAN QUALIFY FOR FLYING PAY. PARAGRAPH 12 OF THE ORDER PROVIDES THAT "THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS.' PURSUANT TO SUCH EXECUTIVE ORDER, PARAGRAPH 1044087-1, NAVY COMPTROLLER MANUAL, PROVIDED AS FOLLOWS:

GENERAL. THE COMMANDING OFFICER WILL SUSPEND FROM FLYING ANY OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER UNDER HIS COMMAND WHO, IN HIS OPINION, IS UNFIT FOR FLYING, EXCEPT AS A RESULT OF AN AVIATION ACCIDENT. PERSONNEL INJURED OR INCAPACITATED AS A RESULT OF AN AVIATION ACCIDENT WILL NOT BE SUSPENDED FROM FLYING. A SUSPENSION FOR A MINOR SICKNESS OR INJURY IN THE CASE OF AN OFFICER, WARRANT OFFICER, OR AVIATION PILOT IS MADE AND REVOKED BY THE COMMANDING OFFICER; NO CONFIRMATION IS NECESSARY. A SUSPENSION FOR OTHER THAN A MINOR SICKNESS OR INJURY MUST BE CONFIRMED BY THE BUREAU OF NAVAL PERSONNEL. WHEN THE COMMANDING OFFICER CONSIDERS THE MEMBER THUS SUSPENDED TO BE AGAIN FIT FOR FLYING, HE IS AUTHORIZED TO REVOKE THE SUSPENSION AND WILL REPORT HIS ACTION TO THE BUREAU OF NAVAL PERSONNEL. CONFIRMATION OF SUCH ACTION RESULTS IN THE REMOVAL OF THE SUSPENSION FROM THE DATE OF REVOCATION BY THE COMMANDING OFFICER. IN THE CASE OF AN ENLISTED MEMBER, EXCEPT AN AVIATION PILOT, BOTH THE SUSPENSION AND REVOCATION ARE ALWAYS MADE BY THE COMMANDING OFFICER; NO CONFIRMATION IS NECESSARY WHETHER THE SICKNESS OR INJURY BE MINOR OR OTHERWISE. THE COMMANDING OFFICER WILL IMMEDIATELY INFORM THE DISBURSING OFFICER OF ANY SUSPENSION FROM FLYING DUTY, GIVING THE NAME OF THE MEMBER, THE DATE SUSPENDED, AND THE REASON. HE WILL SIMILARLY INFORM THE DISBURSING OFFICER OF THE REVOCATION OF A SUSPENSION. IN THIS CONNECTION, FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO AVIATION PAY, THE RECEIPT OF A HOSPITAL RATION NOTICE (S. AND A. FORM 534) IS CONSIDERED NOTIFICATION TO THE DISBURSING OFFICER THAT AN AUTOMATIC SUSPENSION FROM FLYING DUTY EXISTS. ( ITALICS ADDED.)

WHILE THE LAST SENTENCE OF THE ABOVE-QUOTED REGULATION MIGHT SEEM TO SUGGEST THAT HOSPITALIZATION AUTOMATICALLY EFFECTS A SUSPENSION FROM FLYING DUTY, THERE APPEARS TO BE NO REGULATION SPECIFICALLY SO PROVIDING. ON THE CONTRARY, THE QUOTED REGULATION CONTEMPLATES A SUSPENSION FROM FLYING DUTY ONLY BY THE COMMANDING OFFICER, AND IN FACT LIMITS HIS POWER TO SUSPEND TO CASES OF MINOR DISABILITIES, REQUIRING CONFIRMATION BY THE BUREAU OF NAVAL PERSONNEL IN OTHER DISABILITY CASES. HOSPITALIZATION NOT BEING AN UNUSUAL INCIDENT OF DISABILITY, THAT PART OF THE SUBJECT REGULATION VESTING SUSPENSION AUTHORITY IN THE COMMANDING OFFICER AND RESERVING TO THE BUREAU OF NAVAL PERSONNEL CONFIRMING AUTHORITY IN OTHER THAN MINOR DISABILITY CASES IS INCONSISTENT WITH AN AUTOMATIC SUSPENSION UPON HOSPITALIZATION. THE REGULATION HAS SUBSEQUENTLY BEEN CHANGED TO PROVIDE THAT RECEIPT OF A HOSPITAL RATION NOTICE IS CONSIDERED NOTICE OF "A POSSIBLE SUSPENSION FROM FLYING DUTY," WHICH APPEARS TO BE CONSISTENT WITH THE OTHER PROVISIONS OF THE QUOTED REGULATION.

IN OUR DECISION OF JULY 19, 1956, 36 COMP. GEN. 57, INVOLVING THE SAME REGULATION GOVERNING THE PRESENT CASE, IT WAS HELD THAT A SUSPENSION FROM FLYING DUTY BECAUSE OF UNFITNESS FOR FLYING GENERALLY IS A MATTER OF DISCRETION ON THE PART OF THE INDIVIDUAL'S COMMANDING OFFICER AND THAT HOSPITALIZATION IN AND OF ITSELF DOES NOT OPERATE TO SUSPEND A MEMBER'S FLIGHT STATUS. IN THE PRESENT CASE COMMANDER KELLY'S COMMANDING OFFICER APPARENTLY DID NOT SUSPEND HIM FROM FLYING AND THERE APPEARS TO BE NO SUFFICIENT BASIS, UNDER THE QUOTED REGULATIONS, FOR HOLDING THAT HIS ADMISSION TO THE UNITED STATES NAVAL HOSPITAL AT OAKLAND, CALIFORNIA, WORKED AN AUTOMATIC SUSPENSION OF HIS FLIGHT ORDERS.

ACCORDINGLY, ON THE BASIS THAT THERE WAS NO FORMAL SUSPENSION FROM FLYING AND THAT FLIGHT REQUIREMENTS WERE MET FOR THE PERIOD INVOLVED, THE OFFICER IS ENTITLED TO AVIATION PAY FOR SUCH PERIOD, IF OTHERWISE CORRECT.